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Madhya Pradesh High Court · body

2011 DIGILAW 59 (MP)

Prabhulal v. C. B. N. Garoth

2011-01-13

I.S.SHRIVASTAVA

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JUDGMENT I.S. Shrivastava, J. 1. This order is for the disposal of the first bail application filed under Section 439 of Code of Criminal Procedure by the applicant Prabhulal. The applicant is involved in Crime No. 02/2010 of Police Station- CBN Garoth, District- Mandsaur registered under Sections 8/18 (b) and 8/29 of the Narcotic Drugs and Psychotropic Substances Act. 2. According to the prosecution story, on 31/03/2010, Shri D.S. Meena, Inspector received an information from the informer that Kaluram along with one companion who may be Chitarmal Dhakad R/o Muwada, Police- Station Ratangarh would transport opium by his motorcycle bearing registration No. M.P.-44-MB-5257 in between 15.00 to 16.00 at Gandhi Sagar Gate No. 3 near Hanuman Temple.; he would deliver it to some smuggler. Hence on this information, panchanama about the information of the informer was prepared and raid party was arranged which reached the spot along with independent witnesses. 3. On the arrival of motorcycle bearing registration No. MP.-44-MB-5257 on which two persons were riding, it was found that they waited for someone about 15-20 minutes. Thereafter, as soon as they started motorcycle and his companion was sitting with the bag on the motorcycle, they were intercepted by the police party. On interrogation, driver of the motorcycle gave his introduction as Kalu S/o Omkarlal and pillion rider gave his introduction as Chhitarmal S/o Mangilal and they told the bag of their ownership. They were apprised with the information and after obtaining their due consent, the bag was searched in which two transparent white polythene bags were found which contained blackish substance which was found as opium on test and accused Kalu and Chhitarmal also accepted it to be opium. On weightment, each polythene bag was containing 8 kg opium and in all 16 kg opium. Thereafter, after obtaining two samples each of 25 grams, samples were sealed and the remaining quantity was also sealed on the spot and both the accused were arrested and after returning to police station, the above offence was registered. 4. On interrogation, accused Kalu informed that one week before, he went to Muwada in his relationship, where accused / applicant Prabhulal told him that he had to deliver 15-20 kg opium to some party and Prabhulal asked him to supply 3-4 kg opium. Hence on 30/03/2010, Kalu received Rs. 90,000/- as an advance and delivered 3 kg opium at the house of Prabhulal. Hence on 30/03/2010, Kalu received Rs. 90,000/- as an advance and delivered 3 kg opium at the house of Prabhulal. At the same time, Prabhulal also purchased 10 kg opium from Chhitarmal. In this opium, Prabhulal also added his 3 kg opium. Thereafter, from this 16 kg opium, Prabhulal prepared two polythene bags each of 8 kg opium. Thereafter, on 31/03/2010, he sent the said opium with Kalu and Chhitarmal to Gandhi Sagar Gate No. 3 and on the other motorcycle, he proceeded for Ghandi Sagar on 31/03/2010. Prabhulal was to receive the possession of the said opium from Kalu and Chhitarmal and thereafter, he was to deliver it to some other party, but Prabhulal could not meet Kalu and Chhitarmal at the given time and Kalu and Chhitarmal were arrested. Applicant Prabhulal also confirmed this fact by his statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act before his arrest. The same fact was also confirmed by the statement of Kalu and Chhitarmal recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, hence the applicant Prabhulal has been arrested. 5. It has been argued on behalf of the applicant that the quantity of the seized opium is below the commercial quantity. Nothing has been seized from the possession of the applicant and he has been falsely implicated. His statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act is not admissible, as it was recorded in custody of police. Hence he be released on bail. 6. Respondent's counsel opposed this bail application and it has been argued that the applicant is a smuggler of the opium and seized 16 kg opium was managed by him and supplied to Kalu and Chhitarmal for transportation which was to be delivered to some smuggler. His confessional statement is supported by the statement of co-accused persons. The seized opium is in commercial quantity, hence bar under Section 37 of the Narcotic Drugs and Psychotropic Substances Act is applicable. There is possibility of abscontion of the applicant, hence this bail application be dismissed. 7. Considered the circumstances and the case diary perused. 8. It reveals that the seized 16 kg opium was of the ownership of the applicant Prabhulal and it was supplied by him to Kalu and Chhitarmal for delivery to some smuggler. There is possibility of abscontion of the applicant, hence this bail application be dismissed. 7. Considered the circumstances and the case diary perused. 8. It reveals that the seized 16 kg opium was of the ownership of the applicant Prabhulal and it was supplied by him to Kalu and Chhitarmal for delivery to some smuggler. The statement of Prabhulal has been recorded before his arrest and is admissible under Section 67 of the Narcotic Drugs and Psychotropic Substances Act. 9. Though it has been argued by the applicant's counsel that in the case of Union of India v. Balmukund and Ors. 2009 Cri.L.J. 2407, it has been held that: Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. The Court while weighing the evidentary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statements should, in our considered opinion, be taken into consideration 10. In reply, it has been argued by the Respondent's counsel that at this stage, the acceptability of the statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act of the accused could not be considered, but it is a matter of trial. 11. Considered the arguments on this point. The point for consideration is that whether the admissibility of statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act is to be considered at the time of consideration of bail. In the case of Union of India v. Shiv Shankar Kesari (2007) 3 SCC (Cri) 505, it has been held that acceptability of statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act is a matter of trial. This case was for the grant of bail to the accused while in the case of Union of India v. Balmukund and Ors. This case was for the grant of bail to the accused while in the case of Union of India v. Balmukund and Ors. (supra) the Appellant was acquitted by the High Court. Therefore, both these cases are distinguishable. From the facts of this case, it reveals that the statement of Prabhulal was recorded when he was not under arrest and prima facie, it reveals that he was a master mind of supply of 16 kg opium to smuggler and he arranged for 16 kg through Kalu and Chhitarmal, therefore, for the consideration of this bail application, the prima facie case is to be seen. 12. The seized opium is in commercial quantity, therefore, bar under Section 37 of the Narcotic Drugs and Psychotropic Substances Act also affects. In the case of State of M.P v. Kajad (2001) 7 SCC 673 , the Apex Court held that: Section 37 of the Narcotic Drugs and Psychotropic Substances Act enjoins that a person accused of an offence punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under Sub-clause (ii) of Clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in Clause (b) of Sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Narcotic Drugs and Psychotropic Substances Act is uncalled for." Similarly, in the case of Union of India v. Shiv Shankar Kesari (2007) 3 SCC (Cri) 505, it has been held that: As Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 itself provides that no person shall be granted bail unless the two conditions are satisfied. They are: the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail 13. On the basis of the above discussions, I am of the view that the admissibility of the statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act is not to be considered at the time of consideration of bail. Therefore, there are no grounds for the satisfaction of the Court under Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act. Hence, the Appellant Prabhulal cannot be enlarged on bail. Accordingly, this bail application is dismissed.